Buzalek and Buzalek (No 2)

[2009] FamCA 1336

FAMILY COURT OF AUSTRALIA

BUZALEK & BUZALEK (NO. 2) [2009] FamCA 1336

FAMILY LAW – CHILDREN – Time children spend with husband – Reports to be provided to husband in relation to children’s medical conditions – Husband be at liberty to contact children’s treating medical practitioners

FAMILY LAW – COSTS – Whether costs should be indemnity costs – Husband’s means to pay costs – Costs granted to wife

Family Law Act 1975 (Cth)

APPLICANT: Mr Buzalek

RESPONDENT: Ms Buzalek

INDEPENDENT CHILDREN’S LAWYER: Robert Winter

FILE NUMBER: ADC 173 of 2008

DATE DELIVERED: 11 November 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 11 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Horvat

SOLICITOR FOR THE APPLICANT: Denise M. Rieniets & Associates Pty Ltd

COUNSEL FOR THE RESPONDENT: Mrs Tinning

SOLICITOR FOR THE RESPONDENT: Norman Waterhouse Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mrs Lindsay

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Robert Winter (LSC)

Orders
BY CONSENT

1. That the children M born … September 2005 and N born … June 2006 spend time with the husband from 10:00am until 4:30pm on 25 December 2009 upon the same conditions as referred to in paragraph 6 of the order made on 7 September 2009.

2. That the time to be spent by the said children with the husband on 26 December 2009 be suspended.

3. Until further order that the wife provide the husband with any report that she receives regarding either of the said children’s allergies and any other medical condition of theirs.

4. That forthwith the wife advise the husband of the names and contact details of any treating medical practitioners of the said children.

5. Until further order that the husband be at liberty to contact any of the said children’s medical practitioners to obtain information with respect to the said children’s medical condition and treatment.

AND IT IS FURTHER ORDERED

1. That the husband pay to the solicitors for the wife on behalf of the wife the sum of ONE THOUSAND DOLLARS [$1,000.00] by way of costs such amount to be paid within twenty-eight [28] days of the date hereof.

2. That the Application in a Case filed by the husband on 10 September 2009 and the Response filed by the wife on 6 November 2009 be dismissed and removed from the active pending cases list.

3. That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.

IT IS NOTED that publication of this judgment under the pseudonym Buzalek & Buzalek is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER:       No. ADC 173 of 2008

MR BUZALEK

Applicant

And

MS BUZALEK

Respondent

EX TEMPORE REASONS

1. This matter is before me today on the husband’s application filed on 10 September 2009, seeking orders in relation to the children.  There is a response to that filed by the wife on 6 November 2009.  In summary, the husband seeks a variation of the current orders, both as to the extent of the time the children spend with him and as to the conditions that apply to that and particularly the requirement of supervision.  In addition, the husband seeks orders for the provision of information by the wife as to certain alleged allergies and, in particular, in relation to sunscreen.  The response of the wife is a little unclear, but reading between the lines, I suppose, it is that the application be dismissed.  However in relation to one aspect – namely a question of the children spending some time with the husband on Christmas Day – it seems the wife is consenting to that, as long as there is a suspension of the ongoing order on the following day, Saturday 26 December 2009.  Now, that is all explained in her affidavit in support of her response - albeit it is not quite clear from the orders that she seeks.  But that is just a comment, it does not effect the decision that I make. 

2. In the end result, I have reminded Ms Horvat – who has appeared for the husband – of what occurred on 7 September 2009 in this matter, and what orders were made and the fact that this matter is awaiting listing for trial and there is a further hearing set for 23 November 2009.  And, as I expressed what was my preliminary view – but is indeed my firm view of this matter – that this application is ill-founded, it should not have been brought, save and except I suppose in relation to the issue of time to be spent on Christmas Day and also, perhaps – and I will say more about this in a moment – in relation to the provision of medical information.  Even though I say that those issues could conceivably be considered as appropriate topics for an application, there was clearly other ways of dealing with them, namely, raising it with me on the first day of the trial, because neither of those issues were in fact raised, or communication between solicitors to see if agreement can be reached about them.  Outside of that, I have indicated categorically that given the state of this matter and the orders that have been made, I am not prepared to make any changes to the time the children spend with the husband, or the conditions attached to it. Ms Horvat has conceded there is no new circumstance, or changed circumstance, that arose between 7 September 2009 and 10 September 2009 when this application was made.  And indeed, there is still no changed circumstance in relation to those issues.

3. In the circumstances I propose to dismiss the application insofar as it seeks change to the ongoing orders.  In relation to Christmas though, there is consent about that and that was indicated at the commencement of the hearing.  There has been, not argument, but submissions in relation to the provision of medical information and I propose to make an order by consent about that.  I stress though that the wife is consenting to those orders the husband seeks, but not thereby making any concession that the appropriate way to deal with that was by way of filing an application in this court three days after the first day of the trial.

4. I now have an application for costs by the wife.  The wife seeks a total of $2000 plus GST, split up as to $600 for counsel fees and $1400 for solicitors fees on an indemnity basis.  That application is opposed.  Initially Ms Horvat sought that that issue be reserved, but I am not prepared to do that.  Mrs Tinning also suggested the issue might be reserved to the next occasion to enable more detail to be given as to her instructing solicitor’s costs, but in the end result, she did not pursue that application.  Accordingly I propose to deal with this matter now.

5. In relation to whether there should be indemnity costs, what Mrs Tinning puts to me is that the parties, as she understood it, were privately funded - certainly her client is – and given the nature of the application – by that I mean, as I have said, its inappropriateness – there should not be any shortfall in terms of any reimbursement that the wife receives in relation to costs – meaning that if it was determined on a party/party basis then there would be a shortfall between what she would receive and what she would be charged by her legal representatives.  Thus I should make an order for indemnity costs.

6. In response Ms Horvat says that the husband is no longer privately funded, and he is now on legal aid.  I have not been told precisely when that occurred and, in a general statement, Ms Horvat says her client can not afford to meet any order for costs. 

7. Any application for costs is governed by s 117 of the Family Law Act 1975. The effect of s 117(1) and (2) is that each party will pay their own costs unless there are circumstances justifying an order for costs in favour of one party and then s 117(2A) sets out the factors or matters to which the court has to have regard in considering what order, if any, should be made, and that means both in relation to whether there are circumstances justifying an order for costs, and also as to what amount of costs should be ordered if it reaches that stage.

8. In my view, there are clearly circumstances here justifying an order for costs.  Ms Horvat suggested that the husband has not been wholly unsuccessful.  That is strictly correct in that there have been orders made in line with at least one and maybe two of the applications made by the husband.  However, as I said in my remarks, there was no issue about the Christmas time and in relation to the medical information, the wife readily agreed to the changed orders sought by the husband once I was able to clarify precisely what the husband was seeking.  Thus, as far as I am concerned, the husband has been wholly unsuccessful, but I need not rely solely on that.  As I have said, and I will not repeat it entirely, in my view, this application should never have been brought in the way that it was.  It was brought three days after the first day of the trial, and in the knowledge that there was a further hearing on 23 November 2009.  I find there are clearly circumstances justifying an order for costs.

9. In terms of, then, whether there should be an order for indemnity costs, there is nothing that has been put to me which would justify an order for indemnity costs.  That is a matter which requires special circumstances, and there is ample authority which sets out the sorts of examples and the sorts of factors and the sorts of issues which would lead to an order for indemnity costs.  Nothing that Mrs Tinning has put to me falls into that category.  It is not unusual for applications to be brought inappropriately, and for orders to be made totally dismissing those applications, and that per se does not require an order or lead to an order for indemnity costs.  There is no denying that there would be a shortfall, but the scale is a scale, and that is what I have to give primary attention to in any order for costs.  It is only in unusual and rare circumstances where an order for indemnity costs will be made, and this does not qualify for that.

10. Therefore, I am looking at this matter in terms of a party-party assessment.  Obviously, I am not a taxing officer and I don’t profess to be, but I am aware of the appropriate scale.  Clearly, and Mrs Tinning does not suggest otherwise, the amount sought for costs is not within the scale.  It is more than the scale provides and accordingly, doing the best I can, I propose to make an order that the husband pay the total sum of $1000 by way of costs.  Now, Ms Horvat has put to me that her client cannot afford the payment of any costs, but where is the relevant information about that?  Nothing has been put to me of any specific nature, and merely to say that the husband qualifies for legal aid does not do the trick either.  This is a matter where the application should not have been brought in the way it has, it has put the wife to expense and time and trouble and the husband cannot hide behind the fact that he, through his counsel, says he is on legal aid.

11. In my view, both an order for costs is justified and an order of a relatively significant amount, given what has occurred in relation to this matter.

I certify that the preceding 11 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 11 November 2009.

Associate